Mediation : is this recently introduced alternative to litigation a truly effective remedy under Maltese law?

Abstract

Mediation is perhaps the most important form of Alternative Dispute Resolution, a mechanism which encompasses innovative modes of dispute resolution as alternative to traditional judicial litigation and arbitration. Even though Mediation has existed since time immemorial in one form or another, it has only been recently introduced within Maltese Law through amendments occasioned in 2003. Locally therefore, a relatively speedy opportunity has been given to the parties to a dispute to reach an amicable settlement. It has also secured greater access to justice insofar as parties are allowed to arrive at an agreement which they deem to be most suitable rather than allowing a third party, a judge, to decide for them. Mediation assumes particular importance insofar as Maltese Family Law is concerned. Within this field of law, the legislator sought to depart from the essential principle of Mediation insofar as this is a voluntary process and has instead compelled parties to attend Mediation as the first step to the resolution of their conflicts. This raises various issues and concerns which must not be disregarded. The debate on Mediation does not stop there; it has also been transposed to the European Union level, where the aim is that of establishing a level playing-field for the regulation of Mediation within member-states. Ongoing discussions have led to the development of a Draft Directive on Certain Aspects of Mediation in Civil and Commercial Matters to try and achieve this goal. This is not an easy task in view of member-states' diverse cultures and also in view of the fact that Mediation is constantly undergoing developments. Such developments include the extension of the applicability of Mediation also in Criminal matters, allowing victims of crimes and their relative offenders to settle their difference out of court.